Article 13 - Capital Gains

Cases

Canada v. Alta Energy Luxembourg S.A.R.L., 2021 SCC 49

Two US firms transferred their investment in a Canadian subsidiary (Alta Canada), that was to develop a shale formation in northern B.C., to a...

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 245 - Subsection 245(4) Treaty shopping to avoid capital gains tax on Canadian resource assets was contemplated, and not a Treaty abuse 660
Tax Topics - Treaties - Income Tax Conventions - Article 4 a company resident under Luxembourg domestic law (its legal seat was there) and that was “liable to be liable to tax,” was resident there for Treaty purposes even though a conduit 366
Tax Topics - Treaties - Income Tax Conventions subsequent OECD Treaty commentary not followed 198
Tax Topics - Statutory Interpretation - Treaties additional consideration in Treaty context of giving effect to the contractual bargain 237

Canada v. Alta Energy Luxembourg S.A.R.L., 2020 FCA 43, aff'd 2021 SCC 49

A Blackstone LP and a U.S. shale company transferred their investment in a Canadian subsidiary (Alta Canada), that was to develop a shale...

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 245 - Subsection 245(4) object and spirit of Lux Treaty was no broader than its words 465

Canada v. Sommerer, 2012 DTC 5126 [at 7219], 2012 FCA 207

After finding that s. 75(2) did not apply to attribute to the Canadian-resident taxpayer a taxable capital gain realized by an Austrian private...

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - 101-110 - Section 104 - Subsection 104(1) Austrian foundation likely not a trust 181
Tax Topics - Income Tax Act - Section 248 - Subsection 248(5) 84
Tax Topics - Income Tax Act - Section 75 - Subsection 75(2) does not apply to FMV purchases 236
Tax Topics - Treaties - Income Tax Conventions treaty applies to economic double taxation 356

Haas Estate v. Canada, 2001 DTC 5001 (FCA)

Where a United States resident has disposed of Canadian real property, the calculation of the reduction under Article XIII(9) of the Canada-U.S....

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Canada (Attorney General) v. Kubicek Estate, 97 DTC 5454 (FCA)

Given that "the ordinary meaning of 'gain' for the purposes of Article XIII of the [Canada-U.S.] Convention is the gain which is subject to tax"...

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Gladden Estate v. The Queen, 85 DTC 5188, [1985] 1 CTC 163 (FCTD)

The "sale or exchange" of capital assets under Article VIII of the 1942 Canada-U.S. Convention included a deemed disposition of capital property...

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Locations of other summaries Wordcount
Tax Topics - Treaties - Income Tax Conventions 47

Hurd v. The Queen, 81 DTC 5140, [1981] CTC 209 (FCA)

The purchase of shares pursuant to an employee stock option agreement was found not to be "an exchange of capital assets" within the meaning of...

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See Also

Alta Energy Luxembourg S.A.R.L. v The Queen, 2018 TCC 152, aff'd 2020 FCA 43, aff'd 2021 SCC 49

A U.S. corporation (“Alta Resources USA”), which was a leader in the development of shale oil and gas assets in the U.S., and a...

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 245 - Subsection 245(4) no abuse in non-resident investors using a s.à r.l. to avoid capital gains tax on a new Canadian exploration company 384
Tax Topics - Statutory Interpretation - Interpretation Bulletins, etc. taxpayers should be able to rely on CRA position in making a capital investment 125

Resource Capital Fund IV LP v Commissioner of Taxation, [2018] FCA 41 (Federal Court of Australia), rev'd on various grounds [2019] FCAFC 51

Two Caymans investment LPs (“RCF IV” and RCF V”) whose limited partners were mostly U.S. residents, realized gains on income account from...

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Other locations for this summary
Tax Topics
Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 9 - Capital Gain vs. Profit - Shares private equity fund LP with 5-year holding objective realized share gain on income account 175
Tax Topics - Income Tax Act - Section 115 - Subsection 115(1) - Paragraph 115(1)(a) - Subparagraph 115(1)(a)(ii) gains of a NR PE fund from disposals of Australian share investments that were managed in part in Australia were derived from Australia 427
Tax Topics - Treaties - Income Tax Conventions - Article 3 each U.S.-resident partner of a Caymans PE LP carried on a U.S. “enterprise” 234
Tax Topics - General Concepts - Stare Decisis lower court not bound by a point of law that was assumed rather than examined by a higher court 292
Tax Topics - Income Tax Act - Section 152 - Subsection 152(1) assessment of partnership was assessment of partners 89
Tax Topics - Treaties - Income Tax Conventions - Article 6 Art. 6 extends common law meaning of real property 198
Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Taxable Canadian Property - Paragraph (d) shares of lithium mining and processing company were derived principally from the processing rather than mining operation and, thus, were not taxable Australian real property 514
Tax Topics - Income Tax Act - Section 218.3 - Subsection 218.3(1) - Canadian Property Mutual Fund Investment shares of Australian mining company were primarily attributable to the processing rather than mining operations 142
Tax Topics - General Concepts - Fair Market Value - Other processing assets of mining company were more valuable than its mining assets 238

Commissioner of Taxation v. Resource Capital Fund III LP, [2014] FCAFC 37 (Fed. Ct. of Austr.)

The appellant ("RCF") was a non-Australian partnership which was assessed on the basis that its gain from the sale of a "member ship interest" in...

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Locations of other summaries Wordcount
Tax Topics - General Concepts - Fair Market Value - Other mining information not to be valued separately at reproduction cost 296
Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Taxable Canadian Property mining information not to be valued separately at reproduction cost 296
Tax Topics - Treaties - Income Tax Conventions - Article 4 reverse hybrid partnership 431

Resource Capital Fund III LP v. Commissioner of Taxation, [2013] FCA 363 (Fed. Ct. of Austr.), rev'd supra.

The appellant ("RCF") was a Caymans limited partnership with mostly US-resident partners, which was assessed under the "taxable Australian real...

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Kaplan Estate v. The Queen, 94 DTC 1816 (TCC)

Land of U.S.-resident (which had an adjusted cost base to him of $17,050 based on its V-day value) was acquired by him in 1952 at a cost of $7,000...

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Administrative Policy

2020 Ruling 2019-0801011R3 - Article 13(4) of the Treaty

Background

Mr. A, who has never been a resident of Canada and is a resident of a redacted country for purposes of Art. 4 of the Treaty with that...

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 116 - Subsection 116(5.02) children under 18 had the legal capacity to give a s. 116(5.02) notice 171

4 June 2019 Internal T.I. 2018-0783441I7 F - Sale of land by a resident of Hong Kong

A non-resident individual (the "Non-resident") residing in Hong Kong for the purposes of the Canada-Hong Kong Convention disposed of land located...

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7 June 2017 CPTS Roundtable, 2017-0695131C6

If a U.K. resident disposes of shares of its Canadian subsidiary that derive the greater part of their value from rights related to an active oil...

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 13 - Subsection 13(21) - Proceeds of Disposition Q.1 - Daishowa extends beyond reforestation and reclamation obligations only on a case-by-case basis 213
Tax Topics - Income Tax Act - Section 66 - Subsection 66(15) - Canadian Resource Property - Paragraph (d) Q.2 - a Canadian resource royalty interest requires a right to “take production” 135
Tax Topics - Income Tax Act - Section 115 - Subsection 115(1) - Paragraph 115(1)(a) - Subparagraph 115(1)(a)(ii) Q.4 - by analogy to mining, hydrocarbons may be similar properties 348
Tax Topics - Income Tax Regulations - Regulation 1101 - Subsection 1101(1) Q.5 - normal course dispositions of oil and gas properties generally are not of a separate business 131
Tax Topics - Income Tax Act - Section 4 - Subsection 4(1) Q.5 - application of Scales test to determining whether there is a separate business 224
Tax Topics - Income Tax Regulations - Schedules - Schedule II - Class 26 Q.7 - refinery catalysts are Class 26 property 87
Tax Topics - Income Tax Regulations - Schedules - Schedule II - Class 49 Q.8 - taxpayers generally have the documentary evidence on hand to allocate costs between pipelines and pipeline appendages 117

22 September 2017 External T.I. 2016-0668041E5 - TCP and Article 13(5) of Canada-UK Treaty

A Netherlands corporation (BVCo) holds 1/3 of its assets as shares of an Australian subsidiary (“AusCo”), whose Australian real estate assets...

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Taxable Canadian Property - Paragraph (d) proportionate value approach to determining whether shares of a foreign holding company are derived more than 50% from Canadian immovable property for Treaty purposes 308

17 February 2017 External T.I. 2015-0602781E5 - Disposition of farm property by a non-resident

A resident of Germany will gift her shares, each qualifying as a “share of the capital stock of a family farm or fishing corporation” under s....

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 116 - Subsection 116(4) CRA may accept a T2062 showing deemed s. 73(4.1) rollover proceeds 297
Tax Topics - Income Tax Act - Section 116 - Subsection 116(6.1) failure to file notice within 30 days 150

1 March 2017 External T.I. 2016-0658431E5 - Article XIII of Canada-U.S. Convention

Are shares or trust interests in a resident corporation or trust considered to derive their value principally from real property situated in...

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Taxable Canadian Property - Paragraph (d) derived principally test done on look-through basis 144

2014 Ruling 2014-0527221R3 - Disposition of shares under Canada-Israel Treaty

Current structure

Foreign Parent, an Israeli public company, holds its LP interest in LP trough a Canadian subsidiary (Canco1) and holds its GP...

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17 November 2014 External T.I. 2014-0555061E5 - Canada-Japan Income Tax Convention, Article 13

Paragraph 4 of the Canada-Japan Treaty states that "Gains derived by a resident of a Contracting State from the alienation of any property other...

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24 September 2014 External T.I. 2014-0543071E5 F - Article XIII of the Canada-France Treaty

An individual resident in Canada, who held the bare ownership of French immovable property, disposed of the property at a gain. France was...

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2012 Ruling 2011-0403291R3 - Treaty exempt sale

Following a preliminary reorganization (including an amalgamation of predecessors of Amalco so as to "consolidate the tax attributes"), all the...

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Disposition partnership distribution not disposition 72
Tax Topics - Income Tax Act - Section 55 - Subsection 55(2) Treaty step-up to avoid the application of s. 55(2) to a spin-off made to effect an arm's length sale of the rump 337

14 April 2014 Internal T.I. 2013-0516151I7 F - Article XIII(4) of the Canada-XXXXXXXXXX Convention

A non-resident corporation (Vendor) disposed at a gain of shares of Canco, which held partnership interests in two Quebec real estate partnerships...

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4 December 2013 Internal T.I. 2013-0489051I7 - Personal-Use-Property & Article XIII(9)

A U.S. resident owned vacant land in Canada from before September 26, 1980 and after that date built a cottage thereon. CRA found:

If the cottage...

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 116 - Subsection 116(1) personal-use land and building are one property 107

2013 Ruling 2012-0444431R3 - Taxable Canadian Property

A partnership (Foreign Partnership), whose non-resident members (Investors) are resident in Foreign Countries 1 through 5, uses a portion of its...

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Taxable Canadian Property - Paragraph (d) foreign partnership holding debt in addition to equity of foreign holdco 160

28 November 2011 CTF Roundtable, 2011-0425901C6 - Does share derive value principally from real prop

After the questioner referenced the previous position that, in the context of Treaty references to shares deriving in their value principally from...

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17 May 2012 IFA Roundtable, 2012-0444161C6 - Competent Authority Agreements

In responding to a query which noted that the Canada-U.S. Treaty, unlike other Conventions, specifically referred to deferral agreements of...

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22 June 2012 External T.I. 2011-0416521E5 - Share Options and Taxable Canadian Property

The definition in Art. XIII of the Canada-US Convention of "real property situated in the other Contracting State" includes, in the case of real...

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2012 Ruling 2011-0429961R3 - Hydrocarbon & Immovable property: Canada-UK Treaty

Ruling that the transfer of shares of a UK company (Forco2) by two other UK companies (Forco1 and Forco4) would be exempt under Art. XIII, para. 8...

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2008 Ruling 2008-0272141R3 - Conversion of Delaware corporation into LLC

The shares of a U.S. corporation (D Co) holding two Canadian subsidiaries (G Co and H Co) whose shares are taxable Canadian property are...

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Disposition conversion into Delaware LLC of U.S. corp. holding taxable Canadian property 109

20 August 2007 External T.I. 2005-0111151E5 - Article 13(4) Canada - Germany Tax Agreement

"Real property would not be considered rental property for purposes of Article 13(4) of the [Canada-Germany] Treaty unless the property was...

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9 September 2004 External T.I. 2004-0093091E5 - Approved Stock Exchange; Article 13

An "approved stock exchange" in Article 13 of the Luxembourg and Netherlands Conventions meant a stock exchanged prescribed for purposes of the...

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5 September 2003 External T.I. 2003-0029675 - Article XIII(3)(b)(ii) U.S. Treaty

Although in most cases comparing gross asset values will be the simpler (and perhaps quite often the most reasonable) method for making the 50...

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8 April 2003 External T.I. 2003-000199

After referring to Bromley v. Tryon, [1952] AC 265 (HL) ("'greater part' means anything over one-half"), CCRA stated that:

"The term 'value or the...

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Words and Phrases
greater part

9 January 2001 External T.I. 2000-0042545 - Immovable property

The exception for real property in which the business of the enterprises carried on apparently was viewed as being available where the shares of a...

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30 November 1999 External T.I. 9825155 - CANADA-UK TAX CONVENTION

Where an individual resident of the U.K. owns all the shares of a private Canadian corporation that, in turn, has as its principal asset less than...

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22 October 1997 External T.I. 9710835 - ARTICLE XIII(5) U.S. TREATY (DUAL RESIDENTS)

Where an individual resident of Canada moves to the United States in 1994 and becomes a resident of the United States at that time for treaty...

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15 October 1997 External T.I. 9713855 - ARTICLE XIII CANADA-ISRAEL TAX TREATY

Canada has the right to tax gains of a taxpayer from the deemed disposition of real property situate in Israel as a result of the taxpayer ceasing...

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25 April 1997 External T.I. 9709905 - SALE OF P-SHIP INTEREST BY NON-RESIDENT.

A gain realized by the disposition by a U.S. resident of an interest in a partnership the value of which is not derived principally from real...

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2 January 1996 External T.I. 9514185 - ARTICLE XIII CANADA-ISRAEL TREATY

Where a corporation resident in Israel alienates shares of a corporation resident in Canada the only assets of which are shares of a second...

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18 September 1995 External T.I. 9510365 - SOURCE OF CAPITAL GAIN CANADA-JAPAN TREATY

In considering where a gain from the alienation of shares would be considered to "arise" for purposes of paragraph 4 of Article XIII of the...

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13 September 1995 Internal T.I. 9518087 - GAINS IN U.S. TREATY & LIFE INSURANCE PROCEEDS

The word "gains" in article XIII of the Canada-U.S. Convention means capital gains.

29 August 1995 External T.I. 9506785 - PROPERTY...IN WHICH BUSINESS OF CO CARRIED ON

"Property... in which Business of Co. Carried on"): Respecting the exclusion in Article XIII, paragraph 4 of the Canada-Netherlands Convention...

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13 July 1995 External T.I. 9505185 - UK CONVENTION ART XIII - SHARES

Capital gains realized by a U.K. shareholder on the alienation of shares of a Canadian public corporation and whose shares derived most of their...

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26 April 1995 External T.I. 9501815 - CAP. GAIN - CANADA-IRELAND TAX AGREEMENT

A resident of Ireland is subject to tax of 15% on the disposition of shares that are taxable Canadian property in light of Article VI of the...

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10 February 1995 External T.I. 9426405 - ART XIII(3) CANADA-U.S. CONVENTION -SHARE INCLUDES OPTION

"The reference in paragraph 3 of Article XIII [of the Canada-U.S. Convention] to 'a share of the capital stock of a company, the value of whose...

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12 June 1995 External T.I. 9500915 - ARTICLE 13 CANADA-U.K. TREATY AND LOOK THROUGH BASIS

Given that paragraph 5 of Article 13 of the Canada-U.K. Convention is to be applied on a look-through basis, subparagraph 7(b) of Article 13 also...

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Income Tax Technical News, No. 4, 20 February 1995

When the pro rata method in Article XIII, para. 9 of the U.S. Convention is used to reduce the amount of the capital gain, the months before 1972...

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6 June 1994 External T.I. 9335425 - "ALIENATION OF PROPERTY" AND "INCOME"

A resident of the U.K. will be granted relief from Canadian tax under Article 13, paragraph 8 of the Canada-U.K. Convention on the deemed...

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1993 A.P.F.F. Round Table, Q. 25

A capital gain arising as a result of a distribution of paid-up capital on common shares held by a non-resident generally would be exempt under...

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 116 - Subsection 116(1) 26

11 December 1992 T.I. (Tax Window, No. 27, p. 17, ¶2329)

A U.K. citizen who is resident in Canada for 20 years, then resident in the U.K. for seven years, before he sells a U.K. real property in respect...

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6 November 1992 T.I. 923320 (September 1993 Access Letter, p. 418, ¶C111-054)

With respect to the exclusion in paragraph 7 of Article XIII of the Canada-U.K. Convention for property (other than real property) in which the...

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8 October 1992 T.I. 920970 (September 1993 Access Letter, p. 419, ¶C111-056)

Where a property drops in value after 1984 and then recovers before the date of its disposition, the availability of any transitional relief in...

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17 March 1992 T.I. (Tax Window, No. 18, p. 11, ¶1809)

The gain realized by a U.S. resident who sells an interest in a U.S. partnership which conducts a manufacturing business in Canada and does not...

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18 July 1991 T.I. (Tax Window, No. 6, p. 7, ¶1361)

An individual is resident of Canada for 15 years or more (paragraph 9) if he is a resident of Canada for discrete periods aggregating 15 years and...

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90 C.P.T.J. - Q.33

Although Canadian resource properties are now viewed as something other than capital assets, paragraph 9 of Article XIII of the U.S. Convention...

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27 February 1990 Memorandum (July 1990 Access Letter, ¶1335)

The Canada-U.S. Income Tax Convention would have the effect of exempting a U.S. resident from AMT with respect to capital gains.

84 C.R. - Q.58

guidelines re principal derivation of value from real estate.

84 C.R. - Q. 40

RC accepts the interpretation of "alienation" contained in the Treasury Department's technical explanation, which refers to deemed dispositions...

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Articles

Michael Lang, "Income Allocation Issues Under Tax Treaties", Tax Notes International, April 21, 2014, p. 285.

Allocation conflict in Sommerer (pp. 289-90)

[S]ubsection 75(2)…is an allocation rule that can lead to the income being taxed in the hands of a...

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Locations of other summaries Wordcount
Tax Topics - Treaties - Income Tax Conventions 227

Geoffrey S. Turner, "Harmonizing Tax Treaty Exemptions and Taxable Canadian Property: Demise of the Buisness Property Exemption", International Tax, No. 64, CCH, June 2012, p. 5

"The older tax treaties with broad exeptions for business property, listed shares, and minority 'non-substantial' interests no longer manifest...

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Greg S. Lindsay, "U.S. Investment in Canadian Resource Property: Recent Developments", International Tax Planning, Vol. XVI, No. 3, 2011, p. 1120

Includes discussion of exclusions in immovable property definition in Luxembourg and Netherlands treaties; and treaty shopping.

Lanthier, "Acquiring, Holding and Financing Canadian Corporations", Bulletin for International Fiscal Documentation, Vol. 48, No. 8/9, August/September 1994, Special IFA issue, p. 419.

Discussion of "Canadian spider" structure.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 133 - Subsection 133(1) 0

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